With the best of intentions, the stormwater regulation changes that are currently proposed represent one of the greatest threats to the economy and, more importantly, the future settlement patterns of the Commonwealth of Virginia.

I am a Virginia native and a lifelong resident of the Commonwealth.  I have been a professional engineer in the residential development industry for nearly two decades.  I have seen sprawl - I have designed it - and I know why it has been the choice of developers over the last forty years.  The regulatory actions of the past, including federal, state and local laws have forced the sprawl that today we generally agree is unsustainable. 

The government mandate of separating uses, businesses from homes, homes from schools, schools  from parks – all were based on the idea that everyone was a user of the automobile (and would be evermore), so segregation of uses was once thought to be a good thing. 

We are now seeing the error in that thinking and are working to make changes to those regulations that essentially mandated sprawl suburban development.  We also now recognize better than ever the serious hazards to continued sprawl, not only in water quality, but in air quality and human health as well.

I am now a developer of smart growth and New Urbanism communities. Our goal is to create great places with reduced automobile dependency, increased quality of living AND enhanced environmental habitats.  My company has worked diligently to create designs that will enable both development and environmental protection in one setting.  We have spent years educating the public on why compact development and connected communites are important to our future, with the aim of getting to a point where we can create places that people want, with a lighter development footprint and a longer horizon of sustainability. People across the Commonwealth and around the country now get it, and we don't need regulations to show us the way, because the market is now demanding it.

Divergent views clog this public comment period, either folks are strongly supportive of the new regulations, or they are firmly aligned against it.  Count me among the latter group.  In reading the commentary of the more than 300 posts, it is interesting that the position of those in favor of the regulations is one of a moral imperative, that we must save the Bay, and that somehow, these regulations will accomplish just that.  What is interesting is that most of their arguments is that their arguments end with just that.  No details are given of how these regulations work to accomplish a cleaner Bay.  No background checks on the technical sensibility of equations like Qpre*Vpre=Qpost*Vpost, a nonsensical (and dangerous) formula that is nonetheless ensconced in the proposed regulations.  

I would opine that nearly all of the posts supporting the regulations are from folks like me, avid fishermen, hikers, outdoorsmen, and conservationists, who truly want a cleaner system of rivers and a healthy Bay for future generations.  Of this cause I consider myself an ardent supporter.  

Unfortunately, from my readings, most don't seem to care about the details of the regulations, which packed with bureaucratic processes, mandates, and constraints that all but eliminate the ability for common sense decisions to be made in land use developments.  Of course, it is within the details of these proposed regulations where the devil lies.

As written, the regulations will likely cost every Virginia taxpayer significantly more through increased government bureaucracy.  As written, the regulations do nothing to mandate controls on the worst polluters of the streams and rivers and Bay, agricultural uses.  As written, the regulations ignore the relative cost of removing a pound of phosphorus, whether it be from rural development or the urban core.  As written, the regulations set out to penalize sprawl development (as can be seen through the Runoff Reduction Method spreadsheet that severely penalizes any clearing through “managed turf”).  While the intent to reduce sprawl is clear (and a goal I support), the effect of these regulations will be quite the opposite - and it is on this matter that I will focus the remainder of my comments.

I believe that the authors of these regulations assume that the new regulations, once adopted, will not fundamentally change in the way projects develop.  They assumed that a developer seeking to build a high-density project will continue to do so.  They assumed that a smart growth project will continue to be developed as such.  What is ignored by the state, as evidenced by a very loosely written economic impact assessment, is how these regulations will change the actual way in which the developers will build, based on the additional cost burden of the regulations.

The regulations cause those wanting to create places of high density to pay the most for their development.  This includes smart growth projects (like ours) and urban redevelopment projects.  Our engineers have estimated extraordinary additional costs, just for stormwater management, in order to be able to create the walkable mixed-use communities that are succeeding elsewhere around the country.  These costs are more than can be passed on to buyers and tenants because there are options available elsewhere to these buyers at a lower cost.  And if a developer can not sell or lease their product, THEY WILL NOT BUILD IT.

What will be constructed instead are developments that are low-density enough to be deemed compliant by the Runoff Reduction method embedded in these regulations.  As an example, developer who was once thinking of developing quarter-acre cluster lots will now choose to build three acre “estate” lots, selling fewer lots but for higher prices, and avoiding the expensive stormwater management costs in the process.  Similarly, we can expect a high school site that once chewed up over 100 acres to double or more in size, simply because the punitive nature of the "managed turf" designation for ballfields and courtyards.  Even road right of ways will likely see dozens of "mosquito ponds" per mile constructed to achieve the new requirements of these regulations, causing potential driving hazards and increased human health risks.  

The ultimate result will be the worst kind of sprawl, requiring more roads, utilities, and associated maintenance of those facilities, all for fewer people in a developed area.  Taxes for localities will fall further behind, not catch up, while every cost category will increase per capita.  It is an equation that guarantees financial failure for our Commonwealth and its citizens.

Much discussion has centered around the issue of nutrient offset legislation passed during this year's General Assembly session, and proponents note that this law will "fix" the problem of the one-size-fits-all approach currently written in the proposed stormwater regulations.  Think about that - we have not even passed these regulations, and there is a general acknowledgement that there are significant elements that need "fixing".  Isn't it prudent to fix those issues that we know about BEFORE implementing them?

Further, anyone who has read the legislation permitting nutrient offsets might recognize the mountain of bureaucracy that goes along with determining whether one might even be afforded the opportunity to look offsite to reduce nutrient runoff.  For the few expected scenarios where offsets might work, there is a 6% commission that the State receives if and when there is any offset trade that is deemed acceptable by the DCR.  We deserve an explanation for how the State feels that it can serve as both regulator and paid broker to these deals.  Remember the fox and the henhouse?

Perhaps most significant, but receiving no real attention in all of this discussion, is the issue of laws being promulgated through unelected bodies.  These regulations have not been before any legislative body, yet they have one of the most far reaching impacts on every Virginia citizen of any law I can think of.  I would ask at a minimum that this process be transferred to the legislative branch of our state government for their vote, so that we the people who elected them can act accordingly based on their positions on this most critical issue in recent memory.

Yes, there are many elements to these regulations that can and should be changed, and they are well documented by the comments of the public process, by TAC members, and through direct discussions with DCR's leadership.  It will be interesting to see what changes, if any, we will see from the concerns raised to date.

I urge the Soil and Water Conservation Board to recommend, and for Governor Kaine to elect for further study, particularly of Part 2 (Technical Criteria) of these regulations so that we can actually pass something that will improve the health of the Bay.  I also recommend that a real economic analysis be done, not only on the cost to Virginia government, but the cost to the overall Virginia economy (including jobs lost, land lost, and taxes that will be required to meet the program demands), so that the Governor does not inadvertently wreck the economy of our Commonwealth through regulations whose good intentions are filled with all the wrong details.

Sincerely,

Dave Anderson PE